376 F.3d 1193 | 10th Cir. | 2004
Lead Opinion
In this appeal, Lenora Jordan, Warden of the James Crabtree State Correctional Center in Helena, Oklahoma (“Oklahoma”) seeks review of a conditional grant of ha-beas relief to Oklahoma state prisoner, Adrian Gipson. The sole issue on appeal is whether prosecutorial remarks before the sentencing jury which referenced Gip-son’s prior convictions impermissibly infringed upon his right to be free from double jeopardy. We exercise jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, and REVERSE the grant of habeas relief.
I
Gipson was tried by a jury for second-degree burglary. Because he had been previously convicted of two or more felony offenses, he was subject to punishment under Oklahoma’s habitual offender provision for a minimum term of 20 years. (Jury Instructions at 12); see also Okla. Stat. tit. 21, § 51.1(B) (habitual offender
I would submit to you, ladies and gentlemen, that at a minimum .... an appropriate sentence would be ten years for each of the [prior] convictions, including this one here today, which makes seven, so what I’m telling you is that I think an appropriate sentence, at least a minimum sentence, in this case, would be 70 years.
(R. at 185.) In instructing the jury, the district court clarified that:
[t]he defendant has admitted that he has 6 previous convictions. You may not consider these previous convictions as proof of guilt in the case before you. You may consider the previous convictions for the purpose of determining the punishment if you find the defendant is guilty of the crime of Burglary Second Degree in the present case.
(Jury Instructions at 12.) The jury recommended seventy years imprisonment, and Gipson was sentenced accordingly.
On direct appeal to the Oklahoma Court of Criminal Appeals (“OCCA”), Gipson argued that his sentence was excessive. In the course of making that argument, he urged: “[i]n determining the excessiveness of the sentence, the Court should review possible improper influences upon the jury in assessing punishment” — namely, the prosecutor’s reference to early release from the sentences for Gipson’s prior convictions and the prosecutor’s exhortation to the jury to sentence him to seventy years. (R. at 143, 144-45.) Gipson further stated that “[prosecutorial] comments which asked the jurors to punish Appellant ten years for each felony caused the jurors to violate Appellant’s right to be free from double jeopardy,” and that “[t]he jury’s imposition of a sentence ten times greater than the statutory maximum for the actual offense reflects the prejudice of the prosecutor’s argument.” (R. at 145.) In the face of Gipson’s claim that, inter alia, the prosecutor’s comments caused the jury to violate his double jeopardy rights, the OCCA affirmed Gipson’s conviction and sentence, concluding that Gipson’s sentence was “neither excessive nor the result of prosecutorial misconduct.” Gipson v. Oklahoma, No. F-97-165, slip op. at 2 (Okla.Crim.App. Nov. 3,1997).
Gipson filed a federal habeas petition pursuant to 28 U.S.C. § 2254, again challenging his sentence on double jeopardy grounds. The magistrate judge issued a report, revised after considering objections raised by Oklahoma, which recommended a conditional writ of habeas corpus granting relief on Gipson’s double jeopardy claim. In July 2002, the district court issued an order adopting the magistrate’s report. Oklahoma now appeals, arguing that the district court failed to accord proper deference to the OCCA’s decision denying relief.
II
As a threshold matter, we must determine the appropriate standard of review due to the OCCA’s affirmance of Gipson’s sentence. Because Gipson filed his petition for habeas relief after April 24, 1996, the effective date of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), AEDPA’s provisions apply. See Rogers v. Gibson, 173 F.3d 1278, 1282 n. 1 (10th Cir.1999) (citing Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997)). AEDPA provides that if a claim is adjudicated on the merits in state court,
Under the “contrary to” clause, we grant relief only “if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Court] has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Under the “unreasonable application” clause, relief is provided only “if the state court identifies the correct governing legal principle from [the Supreme Court’s] decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. Thus we may not issue a habeas writ simply because we conclude in our “independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 411,120 S.Ct. 1495.
Conversely, if the state court did not decide a claim on the merits, and the claim is not otherwise procedurally barred, we address the issue de novo and the § 2254(d)(1) deference requirement does not apply. See Aycox v. Lytle, 196 F.3d 1174, 1177 (10th Cir.1999). Our standard of review therefore depends on whether the OCCA denied Gipson’s double jeopardy claim on the merits. Where, as here, there is no indication suggesting that the state court did not reach the merits of a claim, we have held that a state court reaches a decision “on the merits” even when it fails either to mention the federal basis for the claim or cite any state or federal law in support of its conclusion. Id. at 1177.
In the instant case, in consideration of Gipson’s argument that improper prosecutorial comments violated his double jeopardy rights, the OCCA found that Gipson’s sentence was not the result of prosecutorial misconduct. Thus because the OCCA upheld Gipson’s sentence in the face of his argument that prosecutorial misconduct violated his double jeopardy rights we treat the OCCA’s decision as an “adjudication on the merits,” and defer to its result, even though its reasoning is not expressly stated.
*1197 uphold the state court’s summary decision unless our independent review of the record and pertinent federal law persuades us that its result contravenes or unreasonably applies clearly established federal law, or is based on an unreasonable determination of the facts in light of the evidence presented.
Id. at 1178. We stress that this “independent review” standard under Aycox does not constitute a de novo analysis of Gip-son’s claims. Instead, we defer to the OCCA’s decision unless we conclude that its result — not its rationale — is “legally or factually unreasonable.” Id.
Having determined the proper standard of review under AEDPA, we note that the federal circuits addressing similar claims have diverged in determining the standard for evaluating the prosecutorial misconduct at issue. Generally, improper prosecutorial remarks will not warrant federal habeas relief unless the remark “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). If, however, the challenged statements “effectively deprived the defendant of a specific constitutional right, a habeas claim may be established without requiring proof that the entire trial was thereby rendered fundamentally unfair,” but rather only that the violation may not be “deemed harmless beyond a reasonable doubt.” Mahorney v. Wallman, 917 F.2d 469, 472, 474 (10th Cir. 1990) (quotation omitted).
Thus, for example, the Fifth Circuit in Rogers v. Lynaugh, 848 F.2d 606, 610 (5th Cir.1988), reasoned that where prosecuto-rial comments are “of such character that a jury would naturally and necessarily take [them] to be an exhortation to assess multiple punishments for the same offense” such misconduct implicates a “specific constitutional right.” Id. at 611. Conversely, the Ninth and Third circuits have analyzed similar claims of prosecutorial misconduct as generalized due process claims, and, as a result, have proceeded to examine whether such comments deprived a defendant of his right to a fair trial. See, e.g., Beardslee v. Woodford, 327 F.3d 799, 821-22 (9th Cir.2003) (applying a general standard of review to determine whether the trial was unfair when the prosecutor made comments suggesting that the jury punish defendant for a prior homicide); Lesko v. Lehman, 925 F.2d 1527, 1545-46 (3d Cir. 1991) (applying a general standard to evaluate whether the trial was rendered fundamentally unfair when the prosecutor made comments instructing the jury that it had a “duty” to “even the score,” in reference to defendant’s prior murder conviction). However, as we will proceed to analyze below, because we cannot conclude that the OCCA’s decision upholding Gipson’s sentence was contrary to any clearly established law, we need not reach the question of which standard of review to apply to the claim of prosecutorial misconduct in the instant case.
Ill
Under AEDPA, to warrant habeas relief, Gipson must show that the OCCA’s determination, affirming Gipson’s sentence and impliedly finding that the challenged prosecutorial remarks did not violate his right against double jeopardy, was “legally
The Double Jeopardy Clause of the Fifth Amendment, U.S. Const, amend. V, prohibits the imposition of “multiple punishments for the same offense,” North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), and is enforceable against the states through the Fourteenth Amendment. On appeal, Gip-son relies by analogy on a Fifth Circuit case in which the court concluded that prosecutorial comments violated the Double Jeopardy Clause. See Rogers, 848 F.2d at 606. In Rogers, the State introduced evidence of defendant’s three prior felony convictions during the sentencing phase of the trial and made the following argument to the jury:
This is his fourth final conviction for a felony offense. Robbery, robbery, burglary and now robbery again. I submit to you that each one of those felony offenses is worth at least 10 years. He received 12 on the first three. You put those 12 together and you come up with 36. And that is discounting what he has done since he got out of the penitentiary. But I submit to you that if you allocate just 10 years to each of those felony convictions you come up with 40.
Id. at 610. Although the State in Rogers argued that the prosecutor in his closing argument spoke primarily to Rogers’ capacity for rehabilitation and the need for specific deterrence, the Fifth Circuit noted that the prosecutor “did not say ... what the three prior offenses ... implied about [defendant’s] facility for rehabilitation,” but rather, “the prior offenses themselves were said to be each worth ten years.” Id. at 611. Given that the jury ultimately selected the forty-year term advocated by the prosecutor, id. at 612, the Rogers court reasoned that the jury had “naturally and necessarily” understood the prosecutor’s argument as “an exhortation to assess multiple punishments for the same offense,” id. at 611.
The alleged prosecutorial misconduct in the instant case, although borderline, is less straightforward than the misconduct presented in Rogers. Critically, prior to referencing Gipson’s six prior convictions, and unlike the prosecutor in Rogers, the prosecutor addressed Gipson’s facility for rehabilitation and his propensity to commit future crimes in light of his prior convictions. He stated:
Sending [Gipson] to prison for two to four years or five years hasn’t deterred him, and I don’t know if anything short of locking him up for as long a period of time as we can is going to deter him. So I’m telling you, ladies and gentlemen, that I think the only way to keep Adrian Gipson from committing a crime is to keep him locked up.
(R. at 185.)
Moreover, although we by no means commend the prosecutor’s linking of a specific number of years to each of Gipson’s prior crimes, dispositive to our analysis is the fact that unlike the court in Rogers (decided prior to the AEDPA amendments), we may not engage in a de novo review of the alleged prosecutorial misconduct in this case. Even were we inclined to grant relief on Gipson’s double jeopardy claim, we must uphold the OCCA’s determination unless we are persuaded that it “contravenes or unreasonably applies clearly established federal law, or is based on an unreasonable determination of the facts in light of the evidence presented.” Aycox, 196 F.3d at 1178. Because we have no basis to infer that the OCCA acted unreasonably in its factual determinations, in the absence of a clearly established contrary Supreme Court holding at the time the OCCA issued its decision, we must defer to the OCCA’s result. See Yarborough v. Alvarado, 541 U.S. -,
There is no Supreme Court precedent precisely addressing prosecutorial misconduct in the context of recidivism statutes. However, the Supreme Court has explicitly articulated that enhanced punishment for recidivist conduct does not violate the Double Jeopardy Clause. See, e.g., Gryger v. Burke, 334 U.S. 728, 732, 68 S.Ct. 1256, 92 L.Ed. 1683 (1948). That is, in upholding recidivism statutes, the Court has explicitly articulated that an enhanced punishment imposed for a later offense based on earlier offenses “is not to be viewed as either a new jeopardy or additional penalty for the earlier crimes,” but instead as “a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one.” Gryger, 334 U.S. at 732, 68 S.Ct. 1256. Similarly, in Witte v. United States, the Supreme Court explained that the “consideration of offender-specific information at sentencing ... does not result in ‘punishment’ for [past] conduct.” 515 U.S. 389, 400-01, 115 S.Ct. 2199, 132 L.Ed.2d 351 (1995) (holding that the Double Jeopardy Clause was not violated when a defendant was convicted and sentenced for a crime when the conduct underlying that offense had been considered in determining the defendant’s sentence for a previous conviction); see also Nichols v. United States, 511 U.S. 738, 747, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994) (holding that criminal history provisions in the Sentencing Guidelines and state recidivist statutes “do not change the penalty imposed for the earlier conviction”); Moore v. Missouri, 159 U.S. 673, 677, 16 S.Ct. 179, 40 L.Ed. 301 (1895) (reasoning that recidivist statutes do not punish the accused for previous offenses but rather “the punishment is for the last offense committed, and it is rendered more severe in consequence of the situation into which the party had previously brought himself’) (quotation omitted). Thus in the context of alleged prosecutorial misconduct, the Ninth Circuit has held that pros-ecutorial comments to a sentencing jury that referenced defendant’s prior convictions do not deprive the defendant of a fair trial when they are presented to the jury through “the lens of an aggravating factor.” See Beardslee, 327 F.3d at 822-23 (concluding that although a prosecutor’s references to defendant’s prior homicide conviction “pushed the boundaries of permissible argument,” such comments were unlikely to confuse the jury in light of the judge’s instructions and other proper pros-ecutorial comments referring to the prior homicide as an aggravating circumstance).
With these precedents in mind, we conclude that the OCCA’s decision is not contrary to clearly established federal law. Lacking either countervailing Supreme Court precedent or an indication that the OCCA’s determination of the facts in this case is manifestly unreasonable, we defer to the OCCA’s affirmance of Gipson’s sentence. Accordingly, the district court’s grant of conditional habeas relief is REVERSED.
. Although the dissent, in concluding otherwise, relies on the fact that the OCCA referenced only state cases, the Supreme Court in Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002), made clear that under AEDPA there is no requirement that the state court cite or even be aware of Supreme Court cases "so long as neither the reasoning nor the result of the state-court decision contradicts them.'' Id. at 8, 123 S.Ct. 362. Moreover, unlike the Tenth Circuit cases cited by the dissent where we reasoned that a citation to a state court decision may indicate that the state court did not reach a federal claim, we would overreach in this instance to conclude that the OCCA denied Gipson's prosecutorial misconduct claim on a state law ground unrelated to his double jeopardy claim. Such an argument would be compelling if, for example, the two state cases the OCCA cited specifically addressed Gipson's other claims of prosecutorial misconduct — i.e., comments that the prosecutor improperly informed the jury of possible early release or parole considerations — yet were silent as to double jeopardy. Cf. Duckett v. Mullin, 306 F.3d 982, 991 n. 1 (10th Cir.2002). Similarly, Gipson would have a stronger case for de novo review if he had made both a state and Fifth Amendment claim to be free from multiple punishments, and the OCCA had referenced only the state law claim. Cf. Ellis v. Mullin, 326 F.3d 1122, 1128 (10th Cir.2002); Neill v. Gibson, 278 F.3d 1044, 1053-54 (10th Cir.
Dissenting Opinion
sitting by designation, dissenting.
Because I believe the Oklahoma Criminal Court of Appeals did not reach the merits of Gipson’s double jeopardy claim, I would apply a de novo standard of review to that claim. Reviewing that claim de novo, I agree with the District Court that Gipson’s seventy-year sentence was obtained in violation of the prohibition against double jeopardy. Therefore, I respectfully dissent.
I. The Appropriate Standard of Review
As the majority explains, Gipson’s petition must be resolved under the standards provided by the Antiterrorism and Effec
The majority asserts that the deferential standard of review applies here because “there is no. indication suggesting that the state court did not reach the merits.”
A brief review of the procedural background will clarify the issues. Gipson raised a double jeopardy claim before the OCCA, along with other claims that his sentence was excessive and that the prosecutor had improperly referred to the possibility of early release on parole.
Relying on this single sentence, the majority applies a deferential standard of review to the OCCA’s decision because “there is no indication suggesting that the state court did not reach the merits of a claim.”
While much of Gipson’s brief to the OCCA focused on general prosecutorial misconduct, he also clearly alleged a violation of his right to be free from double jeopardy. Specifically, Gipson argued that “[t]he prosecutor was asking the jurors to re-punish Appellant on crimes for which Appellant already had served the time.... In essence, the comments which asked the jurors to punish Appellant ten years for each felony caused the jurors to violate Appellant’s right to be free from double jeopardy, by subjecting him to multiple punishments for the same offense.”
To avoid this conclusion, the state argues here that the OCCA’s rejection of the prosecutorial misconduct claim was necessarily a rejection of the double jeopardy claim because “double jeopardy was the only point raised in support of the prose-cutorial misconduct argument.”
This reading of the OCCA’s opinion is further supported by the two case citations in it. The first case, Applegate v. State,
Given this procedural history, the best that can be said is the OCCA might have decided Gipson’s claim on the merits, but the specific indications in the opinion suggest that it did not. In such circumstances, this Circuit’s cases hold that it is inappropriate to give AEDPA deference. It may well be that this Court’s decisions on when a claim has been adjudicated on the merits are, in the words of Judge Brorby, “not ... consistent” and “apparently conflict[ing]”.
This conclusion was reached on very similar facts in Neill v. Gibson.
This Court reached a similar result in Ellis v. Mulling.
This Court effectively reached the same conclusion in Romano v. Gibson.
That a state court decided an issue with reference only to state law was also taken as an affirmative indication that the merits of the federal issue were not reached in this Court’s decision in Knighton v. Mullin.
This Court has also taken it as an affirmative indication that a federal issue was not addressed on the merits where the state court thoroughly addressed some of the petitioner’s claims, but completely failed to address another. Thus, in Duckett v. Mullin,
Indeed, this Court’s cases have apparently even found an affirmative indication that a claim was not reached where the state court did nothing more than summarily affirm. In Smith v. Scott
Under all these cases, we should conclude that the OCCA did not resolve Gip-
Because I see affirmative indications that the OCCA did not reach the double jeopardy claim, I am not faced with the difficult question of what to do with only debatable indications. But were I faced with such circumstances, I would be quite reluctant to presume an adjudication on the merits. To be sure, such a presumption draws some support from this Court’s decision in Aycox v. Lytle,
II. Merits of the Double Jeopardy Claim
Turning, then, to the merits of Gipson’s claim, the Double Jeopardy Clause of the Constitution provides that no person shall be “subject for the same offence to be twice put in jeopardy of life or limb.”
Gipson’s double jeopardy claim rests upon the following statement of the prosecutor to the jury:
I would submit to you, ladies and gentlemen, that at a minimum, at a minimum, from the State’s point of view, an appropriate sentence would be ten years for each of the convictions, including this one here today, which makes seven, so what I’m telling you is that I think an appropriate sentence, at least a minimum sentence, in this case, would be 70 years.56
The question before this Court, as the Fifth Circuit put it in a very similar case, is “whether the jury understood the State’s contested argument viewed in context to be urging a [seventy]-year prison term for reasons of specific deterrence and rehabilitation or whether it understood that argument to be urging multiple punishments for the same offense.”
In this case, I believe the prosecutor urged an additional penalty for earlier crimes, not a stiffened penalty for the latest crime. While it is true that the prosecutor in his closing remarks made reference to Gipson’s prospects for recidivism, the prosecutor’s remarks did not ask the jury to “enhance” Gipson’s sentence based on his past crimes, but rather to give Gipson ten years for “this” crime and ten years for “each of the [other] convictions.”
The Fifth Circuit case of Rogers v. Lynaugh,
This is his fourth and final conviction for a felony offense. Robbery, robbery, burglary and now robbery again. I submit to you that each one of those felony offenses is worth at least 10 years. He received 12 on the first three. You put those 12 together and you come up with 36. And that is discounting what he has*1207 done since he got out of the penitentiary. But I submit to you that if you allocate just 10 years to each of those felony convictions you come up with 40.61
Like the State in this case, the government in Rogers argued that the comments of the prosecutor were relevant to rehabilitation and deterrence and urged only a stiffened penalty for the crime before the jury. The Fifth Circuit rejected that contention and found that the prosecutor’s statements were “an exhortation to assess multiple punishments for the same offense”:
The State’s argument did not say that what the three prior offenses taken together implied about Rogers’ facility for rehabilitation and his violent propensities warranted a forty-year prison term. Instead, the prior offenses themselves were said to be each worth ten years.... If the jury followed the State’s urging, the jury allocated ten years for the instant offense, leaving thirty years of a forty-year prison term to be otherwise accounted for.... The State was thus necessarily urging the jury to assess a new punishment in addition to the earlier punishment (and thus multiple punishments) for each of the three prior offenses.62
The majority does not disagree with Rogers on the merits, but instead attempts to distinguish it. While agreeing that the improper statements here were “borderline,”
Further, contrary to the State’s argument, the fact that Gipson’s prosecutor said that seventy years should be a “minimum” or “a starting point” is irrelevant.
The Third Circuit case of Lesko v. Lehman
[T]he prosecutor’s suggestion that the jury had a “duty” to even the “score,” which stood at “John Lesko ... two, Society nothing,” invited the jury to impose the death sentence not only for the Miller murder, but also for the Nicholls murder — a crime to which Lesko had already pled guilty, and for which he would be separately sentenced. As the appellees point out, the sentencing jury could properly consider a prior murder conviction as an “aggravating circumstance” .... However, the jury had no authority to impose the death penalty for the Nicholls murder itself. The prosecutor’s suggestion that the jury had a “duty” to do so was clearly improper.72
The Third Circuit then cited Rogers v. Lynaugh for the proposition that “an ‘exhortation to assess multiple punishments for the same offense’ ” is a violation of the double jeopardy clause.
One last case mentioned by the majority deserves brief discussion. In the Ninth Circuit case of Beardslee v. Woodford,
This case is far more like Rogers and Lesko than like Beardslee. Beardslee distinguished Rogers and Lesko because “the prosecutor’s comments in these two cases linked more explicitly the jury’s sentencing duty to the prior crimes themselves, rather than through the lens of an aggravating factor.”
Finally, the majority states that while the prosecutor urged the jury to sentence Gipson to ten years for “each” of his prior convictions, these statements were “clarified”
For these reasons, I would conclude (as did the District Court) that Gipson’s right to be free from double jeopardy was violated when the prosecutor urged the jury to impose specific prison time for “each” of his prior convictions.
Finally, like the District Court below, I cannot conclude that the actual infringement of Gipson’s double jeopardy rights was harmless error. “When a federal judge in a habeas proceeding is in grave doubt about whether a trial error of federal law had ‘substantial and injurious effect or influence in determining the jury’s verdict,’ that error is not harmless.”
The prosecutor’s remarks ... urged the jury to assess new punishments (and thus multiple punishments) for prior convictions as to which Petitioner had already received and served final sentences. It is not possible under these circumstances to conclude “beyond a reasonable doubt” that the jury did not sentence Petitioner at ten years for the conviction at issue and 10 years each for Petitioner’s six prior felony convictions. The 70-year sentence imposed in this ease, therefore, is constitutionally invalid.84
I agree with the well-reasoned opinion below and would affirm.
. 28 U.S.C. § 2254(d).
. 28 U.S.C. § 2254(d)(1), (2).
. See Aycox v. Lytle, 196 F.3d 1174, 1177 (10th Cir.1999).
. Ante at 1196 (emphasis removed).
. R. at 141-144.
. Gipson v. Oklahoma, No. F-97-165, slip. op. (Okla.Crim.App. Nov. 3, 1997) (R. at 22-23).
. Id. at 2 (R. at 22).
. Id. at 2 (citing Applegate v. State, 904 P.2d 130 (Okla.Crim.App. 1995); Jones v. State, 764 P.2d 914 (Okla.Crim.App. 1988)) (R. at 22).
. Ante at 1196 (emphasis removed).
. Donnelly v. DeChristoforo, 416 U.S. 637, 645, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974).
. Mahorney v. Wattman, 917 F.2d 469, 472 (10th Cir.1990) (citing DeChristoforo, 416 U.S. at 643, 94 S.Ct. 1868); see also Le v. Mullin, 311 F.3d 1002, 1013 (10th Cir.2002) (“Generally, a prosecutor's improper remarks require reversal of a state conviction only if the remarks so infected the trial with unfairness as to make the resulting conviction a denial of due process ... Alternatively, if the alleged prosecutorial misconduct denied the petitioner a specific constitutional right (rather than the general due process right to a fair trial), a valid habeas corpus claim may be established without proof that the entire trial was rendered fundamentally unfair.”) (citation omitted).
. 869 F.2d 1377 (10th Cir.1989).
. Id. at 1395. See also Brinlee v. Crisp, 608 F.2d 839 (10th Cir.1979) (fundamental fairness standard not appropriate because Defendant’s specific constitutional right to "presumption of innocence” was implicated).
. R. at 145 (emphasis added).
. Appt's Br. at 9 (emphasis in original).
. See Supplemental Report and Recommendation (Nov. 8, 2001) (R. at 113).
. Id. (R. at 114 n. 4.).
. R. at 144.
. R. at 145.
. Supplemental Report and Recommendation (Nov. 8, 2001) (R. at 113).
. Le, 311 F.3d at 1011 n. 2.
. 904 P.2d 130 (Okla.Crim.App.1995).
. Id. at 137.
. 764 P.2d 914 (Okla.Cr.App.1988).
. Id. at 916-17.
. Supplemental Report and Recommendation (Nov. 8, 2001) (R. at 115).
. Ellis v. Mullin, 326 F.3d 1122 (10th Cir. 2002) (Brorby, J., dissenting) (word order rearranged in first quotation).
. Id. (Brorby, J., dissenting).
. Ante at 1196 (emphasis removed).
. 278 F.3d 1044 (10th Cir.2001), cert. denied, 537 U.S. 835, 123 S.Ct. 145, 154 L.Ed.2d 54 (2002).
. Id. at 1053.
. Id.
. Id. at 1053.
.Id.
. Brogie v. State, 695 P.2d 538, 547 (Okla.Crim.App.1985); Boltz v. State, 806 P.2d 1117, 1124 (Okla.Crim.App.1991), cert. denied, 502 U.S. 846, 112 S.Ct. 143, 116 L.Ed.2d 109 (1991).
. 326 F.3d 1122 (10th Cir.2002).
. Id. at 1128.
. 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973).
. Ellis, 326 F.3d at 1128.
. 239 F.3d 1156 (10th Cir.2001).
. Id. at 1166.
. 293 F.3d 1165 (10th Cir.2002), cert. denied, 538 U.S. 930, 123 S.Ct. 1588, 155 L.Ed.2d 325 (2003).
. Id.
. 306 F.3d 982 (10th Cir.2002), cert. denied, 538 U.S. 1004, 123 S.Ct. 1911, 155 L.Ed.2d 834 (2003).
. Id. at 991 n. 1.
. Id.
. 223 F.3d 1191 (10th Cir.2000).
. Id. at 1193 n. 1.
. 196 F.3d 1174 (10th Cir. 1999).
. Ellis, 326 F.3d at 1131 (Brorby, J., dissenting).
. United States v. Dixon, 509 U.S. 688, 728, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993) (White J. concurring); see also Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).
. U.S. Const, amend V.
. Mahorney, 917 F.2d at 472.
. Pickens v. Gibson, 206 F.3d 988, 997 (10th Cir.2000).
. DeChristoforo, 416 U.S. at 643, 94 S.Ct. 1868
. Supplemental Report and Recommendation (Nov. 8, 2001) (R. at 118).
. Rogers v. Lynaugh, 848 F.2d 606, 611 (5th Cir.1988).
. Ante at 1199 (quoting Gryger v. Burke, 334 U.S. 728, 732, 68 S.Ct. 1256, 92 L.Ed. 1683 (1948)).
. R. at 118 (emphasis added).
.Id. at 610.
. Id.
. A«ieatll98.
.Ante at 1198.
. Rogers, 848 F.2d at 612 n. 25.
. Id. at 611.
. R. at 118 (emphasis added).
. Id.
. Report and Recommendation (Mar. 23, 2000) (R. at 46).
. 925 F.2d 1527 (3rd Cir.1991).
. Id. at 1540-41.
. Id. at 1545.
. Id. at 1545-46 (quoting Rogers, 848 F.2d at 611).
. 358 F.3d 560 (9th Cir.2004).
. Id. at 584.
. Id. at 584.
. Id. at 585.
. Id.
. Id.
. Ante at 1195.
. R. at 46 (jury instructions at 12).
. Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993).
. Report and Recommendation (Mar. 23, 2000) (R. at 46).